Date: Wed, 3 Aug 1994 19:04:13 -0400
From: ae913@freenet.carleton.ca (Timothy Ross Wilson)
Reproduced with the permission of the University of Toronto
Faculty of Law Review
University of Toronto Faculty of Law Review / Volume 52, Fall
1993, pp. 170-205.
Same-Sex Spousal Benefits and the
Evolving Conception of Family*
PETER RUSK
This paper explores the discrimination faced by same-sex couples
claiming spousal benefits and is divided into three parts: Part
I, which surveys the extent and origin of this discrimination;
Part II, which analyses the protection afforded by the Charter;
and Part III, which discusses tactical considerations relevant to
those seeking to redress this inequity. The author illustrates
how this denial of entitlement emanates as much from
discriminatory judicial reasoning as it does from discriminatory
legislation. It is also shown how this discrimination is
reflective of the entrenchment of male-heterosexual privilege in
our society and the idealization of the conventional family form.
Although arguments which focus on "dismantling" the "family"
are acknowledged as being integral in effecting long-term change,
it is argued that "sameness" or "inclusion" arguments are
necessary to effect an initial shift in the status quo conception
of family.
Cet article examine la discrimination a laquelle les couples du
meme sexe font face lorsqu'ils reclament les avantages sociaux
dont beneficient les couples heterosexuels. Ce texte est divise
en trois parties: la premiere partie se veut etre un survol de
l'etendu et des origines de cette discrimination; la deuxieme
partie analyse la protection qu'offre la Charte canadienne des
droits et libertes; et la troisieme partie examine les
considerations tactiques pertinentes pour ceux qui veulent
redresser ces injustices. L'auteur demontre que les difficultes
d'acces aux avantages sociaux pour les couples du meme sexe
provient autant de decisions juridiques discriminatoires que
proviennent, selon l'auteur, de lois discriminatoires. Cette
forme de discrimination reflete la repandu du privilege dont
beneficient les hommes heterosexuels dans notre societe et
l'idealisation de la famille conventionelle. Tandis que l'auteur
est d'accord avec ceux qui disent qu'il faut "demanteler" la
"famille" pour effectuer des changements a long terme, il propose
que les arguments qui s'appuient sur la "similarite" et
"l'inclusion" sont necessaire pour engendrer une transformation
initiale dans la conception que nous avons maintenant de la
famille.
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* I wish to thank Janet Mosher, who thoughtfully encouraged
initial drafts of this paper, and the l.S.D. Tory Foundation,
whose suppon prompted subsequent revisions.
______________________
Introduction
In Canada, same-sex couples are discriminated against vis-a-vis
opposite-sex couples. Same-sex couples are denied benefits
available to opposite-sex couples and thus are discouraged from
forming functional families.1 This discrimination is perpetuated
not only by legislative exclusions but also by a judiciary that
often interprets legislation in a discriminatory manner. In order
to effectively redress this pervasive unfairness it is necessary
not only to clearly identify areas of discrimination but also to
recognize their entrenched male heterosexist roots. In addition,
it is necessary to address perhaps the more problematic issue of
how, once exposed, this discrimination can be remedied.2 The
underlying theme of this "how-to" debate concerns whether equity
can best be achieved by arguing for the inclusion of same-sex
couples in the "conventional family," and hence its benefits, or
whether it is preferable to opt for an approach that is more
active in deconstructing an institution many see as inherently
oppressive and exclusionary.3
___________________
1. The term "functional family" is meant to be an inclusive term
that refers to individuals who unite for purposes such as
childbearing, child rearing, emotional support, financial
support, and cohabitation. (The concept of a "functional family"
is discussed further in Part III.) ln contrast, the term
"conventional family" refers to a family unit in which there are
a man and a woman who typically are married and who typically
have children. According to this conventional stereotype, it is
usually the man who engages in paid employment and the woman who
performs unpaid house and child-rearing work. "Ideally" this
family is also white and middle-class. It is important to note
that the term "conventional family" is used instead of the more
common "traditional family" as a means of challenging the
presupposition that families have always conformed to what is now
the dominant family form. In fact, it is arguable that the
current dominant conception of family extends only as far back as
Judeo-Christianity itself. See D. Greenberg, The Construction
of Homosexuality (Chicago: University of Chicago Press, 1988).
2. The implicit assumption in this article is that
political/social change and legislative change happen
concurrently and reinforce one another. Changing social
conceptions of what constitutes an appropriate family spur
legislative change and vice versa In this respect, arguments
that advocate political/social change are interchangeable with
those that advocate legislative change.
3. The footnotes to this article should serve as an invitation to
the reader to explore further the issues discussed. This
article contributes to the existing scholarship by focusing its
discussion of discrimination on the following issues: (1) how
resistance to lesbian and gay liberation can be seen as an
attempt to safeguard a male-dominated, heterosexist social order;
(2) the way in which difference theory is used to perpetuate this
discrimination; (3) how judicial prejudice has undercut
protection afforded by the Canadian Charter of Rights and
Freedoms (see infra note 83); (4) strategies lesbian and gay
activists can employ when advocating for change; and (5) how this
debate contributes to the evolution of the concept of "family."
It should also be noted, at the outset, that all of the articles,
judgments, and texts referred to in this article reflect, at
least to some extent, the perspectives of the individual writers.
Although my perspective as a gay man is relevant to the
discussion offered in this article, it is by no means
determinative. As within any other group, there is wide
divergence within the lesbian and gay community as to how these
issues can best be resolved. This divergence will be highlighted
in Part III.
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